W hi l e a not her si s t er , G ay l ea A nder s on, was a named p l ai nt i f f i n t he comp l ai nt t o cont es t t he wi l l
, an order was 1

ent er ed pri or t o t r i al al l owi ng G ay l ea A nder s on t o w i t hdr aw vol un t ar i l y as a pl ai nt i f f

. M s

. Anders on di d not appear at tria l. 

### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Ma rc h 22
, 200 4 S es sio n

MARJO RIE DELAPP, ET AL 

### . v. AR THU R D AV ID P RA TT, IND IVID UA LLY AN D A S EX ECU TOROF THE ESTA TE OF MA RY A. PR ATT In re: Estate of Mary A rm strong P ratt

Appeal f romthe Chancer y Court for K nox Coun ty No. 55894-3 Sharon Bell, Chan cellor

F ILED JUNE 22, 2004

No. E2003-02213-COA- R3-CV

Ma rj or ie De lapp , M ary

She rr od , a ndEl sie Ca ton (“ Plain tif fs ” ) s ue d th e ir

br oth e r, Arthu r D a vid 1 Pratt (“De fenda nt”) c laiming, in pa rt, that Def

endant e x erc ised undue influenc e over their mother, Mary Armstrong Pratt (“the Dec ease d”) to induce the De cea sed to make a will in Defenda nt’s favor

. After a jury trial, judg ment was e ntere d holding the D ece ased w as compe tent to make the will, that a conf idential rela tionship ex isted betwee n Def endant a nd the Dec ease d, and that the will was not the l ast will and testament of t he Decea sed. Def endant appeals claiming, in part, that the Trial Court

e rr e d in a llo wi ng te sti mon y re g ard ing his a lle g e d r a c ia l pr e jud ic e to b e int

ro du c e d a nd in f

a ili ng to g rant a mistrial after refe renc e was made to his alleg ed sexual misconduct. Def endant a lso arg ues there is no material evide nce to support the jury ’s ver dicts o f co n fi dential re lationship and undue inf lue nc e a ndthat the Tr ia l Court er re d in den y ing his ob

je c tio n to the e ntry of jud g me nt. We a ff ir m.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cha nc e r y C our t A ffirm e d; Case Re m anded

D. M I CH A EL S WI NEY , J ., delivere d the opinion of the court, in which H ER SCH EL P. F RAN KS , P.J
., E. S. and C H A RLES D. S US ANO , J R ., J ., joined.

Christopher J . Oldham and Ger ald L . Gulley , J r., Knoxvil le, Tenne ssee, f or the Appe llant, Arthur Da vidPr a tt.

J ohnny V. Dunaw ay , L a F ollette, Tenne ssee, f or the Appe llees, Marjorie Delapp, Mary Sherrod, a nd Elsie Caton.-2- OP IN ION

Bac kgr ound

Plaintiffs sued Defenda nt reg arding the wil l executed by the Decea sed on October 5, 19 93 (“ 19 93 wi ll” ). Pla int if fs c la ime d tha t the De c e a se d w a s n ot c omp e te nt t o ma ke the 19 93 wi ll and, that De fenda nt exercised undue inf luence upon the Dec ease d to induce the De cea sed to leave him, among othe r thing s, a fa milyfarm totaling appr ox imately twenty -six acr es.

The Dece ased rece ived the fa rm as a be quest under he r fa ther’s w ill. The Dec ease d and her husband lived on this farm f or many y ea rs an d ra i sed their nine c hildren there . The Dec ease d never

transfe rre d any

owner shi p i n t h e farm to her husband. Ye ars be fore her de ath, ho we ve r, the De c e a se d d e e de d a port io n of th e fa

rm to D e fe nd a nt s o th a t he c ou ld b uil d a ho us e the re a ndde e de d a no the r p ortio n to ano the r son , Da le Pr a tt. De fe nd a nt bui lt a h ou se ne xt doo r t o the Dec ease d’s house in the ear ly 1980' s and has lived there with his wife ever since while f arming both his and the Dec ease d’s land.

Plaintiffs l at er filed a se cond complaint see king, a mong othe r thing s, to impose a constructive tr

ust upon $40,000 that Defe ndant transf err ed fr om the Dec ease d’s che cking acc ount into Defe ndant’s own a ccount pr ior to the Dec ease d’s dea th.

The issues in this case wer e hotly contested. Eig ht of the Dec ease d’s nine childre n survived her. Severa l of t he Decea sed’s grow n children testified at t rial i n support of Plaintiffs’ ca se. Howeve r, seve ral of the ir siblings testified fa vorably for De fenda nt.

The De cea sed made a will in 1984 (“1984 will”) draf ted by Attorney Rainwater that divided the farm equally among her children. I n 1993, the Dec ease d made a nother will draf ted by Attorney Holbrook that lef

t t h e fa rm i n its entirety to Defe ndant. The D ece ased a lso made a handwr itten codicil that disposed of items of per sonal property leaving specific piece s to eac h of her children. The codicil, which was started in 1985 , was written in a notebook that the De cea sed kept around the house and w hich was a dded to by the Dec ease d over the y ear s.

The De cea sed died in De cembe r of 1998 at t he age of 85. Afte r the De cea sed died, Def endant made lists of the items named in the codicil and sent eac h brother and sister a list onlyof the items g iven to them. Plaintiff Mary Sherrod testified she did not g et an opportunity to rea d the

ac t u al co d i ci l u n t i l t ri al an d at t h at t i m e s h e s t at ed t h er e w er e m o re i t em s l i s t ed i n t h e c o d i ci l t o go to her than w ere in the list Defenda nt sent her.

After the De ce ased die d, Def

endant, who w as name d executor of the e state in the 1993 will, attempted to have the 1993 w ill admitt ed to proba te. Def endant also had bee n named a s a potential executor i n the 1984 will along with another of the De cea sed’s sons, Gilbert Pra tt, who-3-

prede cea sed his mother. At trial, it was sti pulated that the 1993 will draf ted byAttorney

Holbrook
was prope rly

executed. The 1993 will was enter ed into probate

. Attorney Holbrook testified a t trial reg arding the drafting of the 1993 wil l. He stated that he initially

met with the Dec ease d and her daug hter, Car oly n Copeland. At torney Holbrook testified t hat according to his notes, the Decea sed “indicated that her son, [Defenda nt] , lived beside her a nd took c are of her. And for that rea son, she wanted him to have the entire estate.” Attorney Holbrook cla

rified that the D ece ased w as leaving some of her ta ng ible persona l property to eac h of her othe r childre n. Attorney Holbrook also pre pare d a powe r of a ttorney signe d the same da y as the will that ga ve De fenda nt power of attorney

.

The De cea sed’s daug hter, Car oly n Copeland, also testified a bout the making of the 1993 will. She accompa nied her mother to the first m ee t i ng with Mr. Holbrook and te stified the Dec ease d broug ht a notebook with her to that meeting . Ms. Copeland testif i ed t h at t h e Decea sed
to l d M r. Holbrook what she wante d done and sa id she wante d to leave the farm to her oldest son, De fe nd a nt. Ms. Cop e la ndte sti fi e d th e De c e a se d lo ve d th e fa rm a ndtol d h e r:

[s] he wa nted to keep the farm a s a whole beca use she said it wa sn’t enoug h to give to all of us. And she wa nted - - she said that [Defenda nt] and I wer e the only

ones that would farm it beca

use we wer e the only ones i ntere sted in farming . . . . And she said that it was B iblical to give the older son land or property , estate. . . .

Ms. Copeland has no doubt that it was the De cea sed’s intent for Def endant to g et the fa

rm.

Def endant testified he had no knowledg e of the 1 9 8 4 will until this lawsuit. He
te sti fi e d th a t th e De c e a se d to ld h im i n 1 99 3, the sh e wa nte d to ta lk t o h im a ndsa t do wn wi th h im and told him she was g oing to g ive him the farm.

Other sibling s also testified t o their belief that the 1993 wil l refle cted the D ece ased’ s wi sh e s. Al ic e Sims , a no the r o f the De c e a se d’ s daug hte rs , state d sh e ha s “ no do ub t wh a tso e ve r this [di stribution under the 1993 will] i s what [the Dece ased] wanted. . . .” Dale Pratt, one of the De c e a se d’ s so ns , s ta te d h is m oth e r l ov e d th e fa rm a nd tol d him she wante d it to r e ma in a

fa rm . D a le Pratt testified he be lieves the 1993 will was what the Dec ease d wanted.

Def endant a ccompa nied the De cea sed and Ms. Copeland to Attorney Holbrook’s office the day

the will was sig ned. He testified he did so at his mother’s r equest. De fenda nt drove the Dec ease d to Attorney

Holbrook’s off

ice a nd they met Ms. Cope land there . All three w ere g iven

a c o p y o f t h e w i l l t o r e v i e w

. D e f e n d a n t t e s t i f

i e d t h a t a f

t e r t h e y r e v i e w e d t h e w i l l
, h e a n d Ms. Copeland wer e asked to g o back to the lobby while the will wa s signe d. Def endant maintains he had nothing to do with dra fting the will, but rather simply ac cede d to his mot her’ s reque st to be there when it was sig n e d

. H e s tate d h is mo th e r w a s n o t e a s il y

in f lu e n c e d to d o a n y th in g

. D e f e n d a nt testified he ne ver use d the power of attorne y . Def

endant a lso testified he has ha d possession of the orig inal 1993 will since 1996.-4- Plaintiffs tell quit e a dif

fer ent story . Plaintif

f M a r jo rie De L app say s Defe ndant talked to he r ab ou t his co nc e rn that he wa s not g oin g to g e t a ll o f the fa rm . So , in the la te 19 80 ' s o r e arl y 1990' s Ms. D eL app asked the Dec ease d if she planned to le ave the farm to De fenda nt. Ms. DeL app stated that the De cea sed told her t h at t he fa rm was g oing to be divided among all her c hildren. P l ai n t iff Mary

Sherrod testified the Dec ease d told Ms. S herr od she’d made a will that divided

every thing e qually

.

Ms. DeL app testified she had no knowledg e of the 1 9 9 3 will until afte r the Dec ease d’s dea th. Ms. De L app knew that the Dec ease d had a w ill prepare d by Attorney Rainwater that divided every thing e quall y among her c hildren and state d that the exist ence of this will was common knowledg e among the fa mily . Some other siblings also testified t hey wer e unaware of the exis tence of the De cea sed’s wills prior to th e De ce as ed ’s dea th. Alice Sims testified she did not know about the 1984 or

the 1993 wills, but d i d k n o w about the ha ndwritten codic il, which she thought a ctually

was the will. Dale Pratt testified he did not know anything a bout the 1984 will prior to this l awsuit.

Severa l witnesses testi fi ed reg arding the Dec ease d’s mental status. Ms. DeL app explained that she left home in the 1970' s to ge t married a nd returne d with her husband to live on the fa rm with the Decea sed i n the late 1980' s. Ms. DeL app and he r husband, Steve D eL app, have sin c e div or c e d. Ms. De L app a nd he r hu sb a nd liv e d on the fa rm wi th the De c e a se d f

or app ro xima te ly
a y ear and a ha lf. Ms. DeL app testified r eg arding the Dec ease d’s mental st atus during the t ime she and her husband lived with the De cea sed and state d that the Dec ease d loved to watch the television show Matlock but would be confuse d about the story line and one time thoug ht she ac tually was on the show. She also testified the De cea sed wa tched the Clar ence Thomas conf irmation hearing on television an d wh en re fer ence was made to a Coke ca n, the Dec ease d thought it was a n

a dv e rt ise me nt f

or Cok e

. F urthe r, Ms. De L app te sti fi e d abo ut on e inc ide nt wh e n th e De c e a se d to ld Ms. DeL app she ha d chicke n and dumplings on the stove but it was re ally a pan w ith socks boiling in it.

Ste ve De L app a lso te sti fi e d re g ard ing the De c e a se d’ s men ta l sta tus du ri ng the tim e he lived with her

. Mr. DeL app st ated there were “times when she c ouldn’t hear , would g o off kind of in another

world, sort of. Little things like not cert ain of reality . She’d see something on T.V

. a ndthi nk it w a s a ne ws pr og ra m a nd
, I thi nk
, it wa s - - a nd I thi nk it w a s a so ap o pe ra . We wo uld

corr ect he r. And the ne x t day , the same thing would ha ppen. . . .” D uring the time fra me betwe en 1990 and 1993, Mr. DeL app noticed the Dec ease d “losing trac k of whe re she was a nd what she w as doing.”

Ms. Sherrod testified that be tween 1990 a nd 1993, sh e o b s er ved that the Dec ease d “wa s unable to c arry on a conver sation at times. She c ould look at y ou and not know who

we we re. She c ouldn’t answer questions.”

Pa u l C ato n , the Dec ease d’s son-in-law and husband of Plaintiff Elsie Caton, prepar ed tax returns for the D ece ased f or appr ox imat el y fi ftee n or six teen y ear s. Mr. Caton testified the-5-

De c e a se d’ s r e c or d k e e pin g wa s “ imm a c ulate .” Ho we ve r, Mr . Cat on no tic e d a c ha ng e in the e arl y nineties. He te stified that the Decea sed di dn’t have a ll of the information re ady for him as she ha d

e a c h pre vio us y e ar. He sta te d the De c e a se d wa sn ’t ha pp y wi th the re turn h e pr e pa re d th a t y e ar s o he didn’t file it for he r and she never asked him to do her taxes a g ain. I n 1992 or 1993, De fenda nt sta rt e d ta kin g the De c e a se d to ha ve he r t a xes p re pa re d b y H& R B loc k, wh ic h i s whe re h e ha d h is
prepa red.

To the contra

ry , s ev eral witnesses testified they noticed no proble ms with the Dec ease d’s mental status ar ound the time the 1993 will wa s executed. Def endant testified he ne ver noticed any

problems with the Dec ease d mentally and cla ims none of his siblings talked to him about

a ny su c h p ro ble ms. De fe nd a nt t e sti fi e d he did no tic e the De c e a se d’ s men ta l sta te g e tti ng wo rs e in 1997, afte r she moved in with him and his wife. Dr. Richard Erickson, a retire d family

phy sician, who treated th e De ce ased from approximately 1977 until 1995, testi fied the D ece ased w as

“ u n u s u a l l y s h arp f

o r h e r a g e

. ” D a l e P r a t t a l s o t e s t i f i e d t h e D e c e a s e d w a s “ s h arp a s a ta c k” un til

abo ut a y e ar b e fo re sh e die d. Carol y n Co pe la nd , w ho du ri ng the tim e pe ri odfr om a pp ro xima te ly 1988 until 1998, talked to the Dec ease d on the phone at least every other day and visited about every two wee ks or so testified she did not notice a ny mental problem with the De cea sed until 1997.

Ms. DeL app testified th at af ter she a nd her husba nd moved out of the De cea sed’s home, she c ontinued to visit the Dec ease d almost every wee kend until 1993. Ms. DeL app testified that in approxim ately

1993, her visits to the Dec ease d decr ease d beca use De fenda nt would make

rac ist jokes in front of Ms. De L ap p ’s adopted minority children. Ms. De lapp also testified that Def endant would br ag about how whe n h e lived in Flor ida he would pick up “ littl e blac k boy s on the roa d” who we re hitchhiking and sca re the m by

“fly ing dow n the hig hway . . . past the stop wher e they wer e supposed to let them out.” Steve D elapp a lso testified to Defe ndant’s ra cial pre judice.

Pla int if f M ary She rr odte sti fi e d s he he ardDe fe nd a nt u se ra c ia l sl ur s in re g ardto M s. DeL app’s c hildren on numerous occ asions. Ms. Sherrod also testified tha t she and he r husband

a c c o mp a n ie d D e f

e n d a n t o n a

f is h in g trip in Ju ly

o f 1 9 7 7
, to St

. G e o r g e I s la n d w h e n D e f e n d a nt pic ke d u p a

y ou ng bla c k b oy

wh o w a s hit c hh iki ng

. Ms. She rr od state d De fe nd a nt ha d th e bo y c limb in the back of the pi ckup with his bike and De fenda nt then sped past the stop whe re the boy wanted to be let out. When asked what she did on that occa sion, Ms. Sherrod stated “I was ter rified. I was

scar ed of [Def

endant]. Nobody

ever crosse d him.”

Def endant de nied eve r say ing a ny thing neg ative about Ms. De L app’s c hildren. He also denied the stories about pickin g u p h i t chhiki ng boy s in Florida. De fenda nt stated he doe sn’t know why

Ms. DeL app stopped visiting the f arm.

I n 1 9 9 2 , the Dec ease d added D efe ndant’s name to her c hecking acc ount giving Def endant joint rig hts of survivorship. Def endant c laims he neve r wrote a che ck without discussing it with the Dece ased f

irst. I n November

of 1997, prior to the D ece ased’ s d ea t h, Def endant transfe rre d $40,000 out o f t he joint acc ount because he sa y s the Dec ease d wanted him to do so.-6-

De fe nd ant testif

ie d th e De c e a se d h a d to ld h im a ro un d Se pte mbe r o f t

ha t sa me y e ar t o d o th is. De fe nd a nt t e sti fi e d:

She said that at her death she didn’t want a ny money distributed. And she said ther e

are three g irls that are g oing to f ight y ou on my

will. She said, they

won’t fig ht y ou

on the fa rm , b ut the y ’r e g oin g to f

ig ht y ou on the mon e y . A nd sh e sa id, so I wa nt i t put over in y our name

.

Def endant testified he used some of the $40,000 to p ay t ax es and insurance on the Dec ease d’s prope rty

. During his de position take n in A ug ust of 1999, Def

endant c laimed that he ha d not touched the $40,000, but he a dmitted at trial that he had since spent s o m e o f i t. Defe ndant
te sti fi e d h e sp e nt a

bo ut $ 80 0 p e r y e ar o ut o f the $4 0, 00 0 o n la ndta xes s inc e the De c e a se d’ s d e a th in 1998, or around $3,200. Howeve r, Defenda nt denied he had used a ny of the $40,000 to pay

taxes on his own nine acr es. Def endant a lso testified he spent about $400 pe r y ear for f our y ear s insuring the Dec ease d’s house a nd its contents and also spent some money fo r attorney fee s. Defe ndant testified there is about $24,000 left out of the $40,000.

Def endant testified tha t there w as $12,000 left in the joint acc ount after the transf er of the $40,000. He stated, “[ s]he told me t o leave ten t housand i n the checking acc ount to bury her.” Of that $12,000, De fenda nt used approximately $6,000 to pay

for the D ece ased’ s funer al expenses and then transfe rre d the rest into his chec king acc ount. He claims that if ca lled upon as executor of the estate to give an ac counting of eve ry dollar he is pre pare d to do this.

Ms. D eL app testified that while she and her husband lived wi t h t h e Decea sed, D e f e n d a n t w o u ld “ c o me d o w n a n d g e t th e c h e c k b o o k f r o m [t h e D e c e a s e d ] to w r it e chec ks for thi ng s. ” Ste ve De L app te sti fi e d th a t du ri ng the tim e the y liv e d the re , De fe nd a nt qui te of te n w ou ld bring the Dec ease d her c heckbook a nd tell her that he had wr itten a che ck. De fenda nt, h oweve r, claims he ne ver w rote c hecks on the Dec ease d’s ac count while Ms. DeL app and her husband lived with the Dec ease d. He testified he wasn’t e ven on the a ccount y et.

I n 1992 or 1993, De fenda nt sold the Dece ased’ s tractor , for $5,000 a nd did not put the money

in the Dec ease d’s ac count. I n addition, Defe ndant trade d a Toy ota he owne d for a Merc ury owned by the Dec ease d. Def

endant late r took the De cea sed’s Toy ota and sold it and boug ht himself a pickup truc k using the money from the c ar.

Pla int if f M ary S herr odte sti fi e d th a t du ri ng the tim e pe ri odfr om a bo ut 1 98 0 u nti l 1991, she v is it e d th e D e c e a s e d a t le a s t w e e k ly

. F o r y e ar s M s

. Sh e rr o d v is it e d th e D e c e a s e d on Sun da y a ft e rn oo ns , b ut s ud de nly in 1 99 3 th e situa tio n c han ge d. Ms. She rr odte sti fi e d s he wo uld

arrive for he r usual visit and find the Dec ease d not at home . Ms. Sherrod stated she would leave a note. L ater , she would find out that Defen d an t had taken the Dec ease d for a drive a nd the notes

never would be ac knowledg ed. Ms. S herr od also testified t hat during t he ti me frame between 1990 and 1993, whe n her f

amily would visit wit h the Dec ease d, Def en d an t suddenly

would appea

r and sit there with them during their visit.-7- Ms. Sherrod testified that sometime betwee n 1976 and 1978, the Decea sed aske d her to co-sig n on a safe deposit box

. The Dec ease d g ave Ms. Sher rod a ke y to that box . Ms. Sherrod

e nte re d th e bo x onc e to s tor e so me va lua ble s d ur ing a

va c a tio n an d o nc e to r e tr ie ve he r v a lua ble s, but she neve r looked a t what the De cea sed had store d in the box

. Ms. Sher rod stated the De cea sed

was a very

private pe rson. Ms. Sherrod testified he r name was on the box for proba bly fiftee n y ear s or more until the ea

rly 1990' s when the D ece ased a sked for the key back.

Ms. She rr odte sti fi e d r e g ard ing oth e r c ha ng e s she no tic e d in the De c e a se d’ s li fe in the ea rly 1990' s. Ms. Sherrod st ated that for y ear s, the Decea sed had f lowers a long he r drivew ay and that she wa s very

proud of them. Ms. Sherr od testifi ed t h at in approxim ately 1990, the Dec ease d told Ms. S herr od that Def endant s ai d s h e wa s n ’t able to ca re f or her flower s any more a nd so he plo we d th e m un de r. Ms. She rr od a lso te sti fi e d that De fe nd a nt sta rt e d g e tti ng the De c e a se d’ s ma il beca use the De cea sed wa s unable to wa lk down to the mailbox any more.

Alice Sims, another on e o f t h e De cea sed’s daug hters testified she visited the Dec ease d about once a week from 1991, until the Dec ease d’s dea th and, unlike Ms. Sherrod, ne ver ha d a ny pr ob le m vi sit ing wi th h e r. Ms. Sims a lso te sti fi e d tha t the De c e a se d ass ist e d h e r i n th e e arl y 1990' s by acc ompany ing Ms. Sims to treatments w h en Ms. Sims underwent che motherapy for c ance r in late 1991 and e arly

1992.

At some point in 1997, the Dec ease d moved in with Defe ndant and De fenda nt’s wife, Cricket. De fenda nt testified he paid Cricke t using money from the Dec ease d’s ac count to take c are of the De c e a se d a ft e r the De c e a se d mo ve d in wi th the m. H e state d:

I didn’t pay [C ricke t] anything from whe n [t he De cea sed] moved in in Februa ry of ‘97 until September of ‘ 97. And [t he Dec ease d] aske d me - - she told me when she

come up there she wanted me to pay Cricket. And she asked me , she said, ar e y ou taking car e of pa y ing Cric k et ? An d I said, Mama, I ’m taking car e of it. And so I started pa y ing Cric ket four hundred a month. And I did tha t, I don’t rea lly know, but for a while. And may

be some time in ‘98, I

think, for three or four

months, Ipaid her six hundred a month. Mother was g etting a

lot worse. And then in Septembe r of ‘ 98, for f our months, I

paid her a thousand dollars a

month.

Def endant testified tha t Cricket was not wor king outside the home during this ti me.

The c ase w as t ri ed bef

ore a jury in J uly of 2002, and the jury

was a sked to answe r thr e e qu e sti on s. Th e fi rs t qu e sti on a sk e d w he the r the De c e a se d wa s inc omp e te nt wh e n the 19 93 wi ll

was e x ecute d. The jury answe red the first question with a no. The second questi on asked w hether a conf idential relat i o nship ex isted betwee n Def endant a nd the Dec ease d on or bef ore the date the 1993 will was executed a nd the jury answe red y es. The third question asked whether the Dec ease d was unduly

influence d to e x ecute the 1993 will. The jury answe red y es to the third question. The Def endant moved to strike the third question and answe r on the g round that the que stion did not addre ss whether

Def endant wa s the party

who undu ly

influence d the Dec ease d and, ther efor e, the-8-

ve rd ic t w a s “ a mbi g uo us a nd un c e rt a in a nd no t su ff ic ie nt to be the ba sis of

a fi na l ju dg me nt i n th is matter.” The Tr ial C o u rt g rante d Def endant’ s motion and struck the answe r to question three

. Judg me nt the n w a s e nte re d o n M arc h 1 8, 20 03 , h old ing that th e De c e a se d w a s c omp e te nt t o e xec ute the 1993 will, th at a c onfidential re lationship ex isted betwee n Def endant a nd the Dec ease d on or befor e the da te of the execution of the 1993 will, a nd that based upon the jury ’s answe rs to questions one and two, the 1993 will was dec lare d not to be the last will and testament of the Dec ease d. De fe nd a nt fi le d a mot ion fo r ne w tr ia l, wh ic h the Tria l Cou rt de nie d. De fe nd a nt app eal s t o this Cou rt

.

Discussion

Although not state d exactly as such, Defe ndant essentially raises f our issues on
appea l: 1) whether

the Trial Court er

red by allowing the introduction of testimony reg arding Def endant’ s alleg ed ra cial pre judice; 2) whe ther the Trial Court e rre d by failing to declar e a mistrial afte r Plaintiffs’ counse l made re fer ence to Defe ndant’s alleg ed sexual misconduct; 3) whethe r there was material evidence to support the j ury ’s s pecia l verdic ts of conf idential rela tionship and undue inf lue nc e ; a nd4) wh e the r the Tr ia l Co urt e rr e d in den y in g th e ob je c tio n to the e ntry

of jud g me nt. Plaintiffs raise a s an additional issue whe ther it was e rror for the T ri al C o u rt to strike specia l interrog atory

number thre e and the jury ’s answe r to that question.

We beg in by

considering whether

the Trial Court er

red by allowing the introduction of testimony

reg arding Def

endant’ s alleg ed rac ial prejudice

. I ssues reg arding admission of evidenc e in Tennesse e ar e re viewed f or abuse of discre tion. Di c k e y v . M c Cor d , 63 S.W .3d 714, 723 (Tenn. Ct. App. 2001). “[T] rial courts ar e ac co rd ed a wide de g ree of latitude in their dete rmination of whether to admit or exclude evidenc e, eve n if such evidence would be relevant.” Id . O ur Sup re me Court discussed the abuse of discre tion standard in Eldridge v. Eldridge
, s t at i n g:

Un de r the abu se of

dis c re tio n s ta nd ard , a

tr ia l c ou rt ’s ru lin g “ wi ll b e up he ld so long a s rea sonable minds can disag ree as t o [t he] propriety of t he dec ision made.” A trial court abuses its discretion only when it “a

pplie[s] an incorrec t leg al standar d,

or re ache [s] a dec ision which is ag ainst logic or re asoning that cause [s] an injustice to the party

complaining .” The abuse of discretion st an d ar d d oes not permit the

app e lla te c ou rt

to s ub sti tut e its jud g me nt f or that of the tr ia l c ou rt

. Eldridge v. Eldridge , 42 S.W .3d 82, 85 (Tenn. 2001) (citations omitted).

Ap pe lla te c ou rt s ord ina

ri ly pe rm it disc re tio na

ry de c isi on s to stan d w he n r e a so na ble judicial minds c an differ conce rning their soundness. Ove rstreet v. Shoney’s, I nc. , 4 S.W .3d 694, 70 9 ( Te nn . Ct . A pp

. 19 99 ). A t ri a l c ou rt ’s dis c re tio na

ry de c isi on mus t ta

ke int o a c c ou nt a

pp lic able law and be consistent with the fac ts before the court. Id

. When revie wing a discre tionary decision by the trial court, the “appellate courts should beg in with the presumption that the decision is correc t and should revie w the evide nce in the lig ht most favorable to the decision.” Id

.-9- Evidence reg arding Def

endant’ s allege d ra ci al pre judice first a

rose dur ing the trial when Plaintiff Mar

jorie De lapp testified that De fenda nt would make rac ist jokes a round her adopted minority children. Ms. Delapp also testified t hat Defenda nt would brag about how when he lived in Florida he would pick up “little black boy s on the roa d” who we re hitchhiking and sca re the m by “fly ing down the hi g hway

. . . past the stop wher e they wer e supposed to let them out.” No obje ction to this l ine of que stioning wa s made whe n this testim ony was g iven.

L ater in the trial, Ms. Delapp’ s ex-husband, Steve Dela pp, testified regar d i n g the

rac ial prejudice of De fenda nt and a br other. An obj ection based upon rele vance was raised at that time. T he Trial Court ove rruled the objection holding the testimony was rele vant to pr oving undue influence by

showi n g t h at Def

endant discour ag ed or pr evente d Plaintiff Marjorie D elapp f rom having contac t with her mother.

As fa r a s th e sto ry

abo ut D e fend ant ’s scar ing “ lit tle bla c k b oy s o n th e ro a d” in Florida , no objection was r aised to this line of questioning until quite late in the trial whe n Plaintiff Mary Sherrod wa s questioned re g arding this subject. At that point, the Trial Court overrule d the objection noting tha t it was too late to object to this line of questioni ng based upon r eleva nce a s the subject alre ady

had bee n introduced throug h other testimony

.

We be lieve rea sonable minds c ould disa g ree as to the propriety of the dec ision made by the Trial Court to admit t h e t es t imony reg arding Def

endant’ s alleg ed ra cial pre judice, the ve ry

essen c e o f a d is c r e ti o n ar y d e c is io n

. We b e li e v e th is to b e e s p e c ia ll y s o g iv e n th a t th e testimony
reg arding rac ist jokes made around Ms. D elapp’ s adopted minority children a rg uably was re levant to the issue of undue influence and that no objection was raised to this testimony or the testimony
reg arding “little black boy s on the road” in Florida w hen it first wa s i ntroduce d. The Tr ial Court believed this evide nce wa s relevant to proving undue influenc e by showing that Def

endant dis c ou ra g e d o r p re ve nte d M s. De lapp fr om h a vin g c on ta c t w ith the De c e a se d. We a lso no te that it
g oes to the Def

endant’ s cre dibilit y

as he de nied eve r say ing a ny thing ne g ative about Ms. De lapp’s children. Given this, we will not substitut e our judgme nt f or that of the Trial Court, a nd we f ind no abuse of discretion re g arding the admission of the testimony re garding Def endant’ s alleg ed ra cial prejudice

.

We next consider whether the Trial Court e rre d by failing to de clar e a mistrial af ter Pla int if fs’ cou ns e l ma de re fe re nc e to a lle g e d s e xua l mi sc on du c t by De fe nd a nt. Du ri ng the c ro ssexamination of Defe ndant, Plaintiffs’ counsel asked “[w]ell, Marg ie wouldn’t wa nt to be around y ou with her s m al l d au g hter since y ou sexuallymolested her, w ould she? ” An objec tion was immediately

raised a nd a mistrial reque sted. The Trial Court sustained t he objection and reminded the jury of ins truc tio ns g ive n a t th e be g inn ing of the tr ia l st a tin g :

L ad i es an d gen t l em en o f t h e j u ry , y o u re m em b erI t al k ed a lo t - - sa i d a l o to f t h i n gs when we first started the trial, but one of the things t hat I said was a question is not proof. Any

body can a sk a question about anything. It’s not proof. I t’s not evidence

o f a n y t h i n g.-10- Th e la st q ue sti on that w a s a sk e d, I wa nt y ou to d isr e g ardit.

The Tr ia l Co u r t th e n p o ll e d e a c h ju r o r in d iv id u a ll y a s k in g if e a c h c o u ld d is r e g ar d o r ig n o re the question. Each jur or re plied he or she could.

“The decision of whe ther to g rant a mistrial is within the sound discretion of the tria l court. This Court will not disturb that dec ision absent a finding of an a buse of discr etion.” State v. Dellinger , 7 9 S. W.3 d 458 , 494 (T e nn . 200 2) (c ita tio ns omi tte d) . We be lie ve re a so na ble min ds c ou ld disag ree as to the propr iety of the de cision made by the Trial Court not to g rant a mistrial, ag ain the
very essenc e of a

discretionary

decision, espe cially

since the Trial Court ga ve a c urative instruc tion and polled the jury . We, theref ore, w ill not substitute our judgme nt for that of the Trial Court, and we f ind no abuse of disc retion re g arding the Trial Court’s de cision not t o g rant a mistrial after Plaintiffs’ counsel made ref ere nce to a lleg ed sexual misconduct on the part of Def endant.

We next will consider whe ther ther e wa s material e vidence to support the jury ’s
sp e c ia l ve rd ic ts o f c on fi de nti a l r e la tio ns hip a nd un du e inf lue nc e

. “ F ind ing s of fa c t by a jury in c ivi l actions shall be se t aside only if there is no materia l evidenc e to support the verdict.” Tenn. R. App. P. 13(d). As our Supre me Court has explained:

I t is the tim e honore d rule in this State that in review i ng a judg ment based
up on a jury ve rd ic t the app e lla te c ou rt s ar e no t a t li be rt y to w e ig h th e e vid e nc e or

to de c ide wh e re the pr e po nd e ra nc e lie s, bu t are lim ite d to de te rm ini ng wh e the r the re is materia l e vidence to support the verdic t; a nd in de termining whether there is material

e vid e nc e to s up po rt the ve rd ic t, the app e lla te c ou rt is re qu ir e d to take the str on g e st le g iti ma te vie w of a ll the e vid e nc e in fa vo r of the ve rd ic t, to a ssu me the truth of a ll that tends to support it, a llowing a ll reasona ble infer ence s to sustain the verdict, and to discard a ll to the contrary . Having thus ex ami n ed t h e record, if ther e be a ny materia l evidenc e to support the ver dict, it must be af firmed; if it wer e other wise, the parties would be deprive d of their c onstitut ional rig ht to trial by jury

.

Crabtree Masonry Co., Inc . v. C & R Constr., Inc. , 575 S.W .2d 4, 5 (Tenn. 1978)

.

This Court defined a

confide ntial relationship in Bills v. Linds ay s t at i n g:

A conf idential rela tionship i s “that re lationship where c onfidenc e is place d b y one in the other a nd the re cipient of that confide nce is the dominant personality , with the ability , beca

use of that confide nce, to influe nce a nd exercise dominion over the

wea ker or dominated party .”-11- A n o rm a l r e l at i o n s h i p be tw e e n a me nta lly c omp e te nt p are nt a nda n a du lt c hil d is not per se a confide ntial r elationship and it r aises no presumption of invalidity of the transa ction.

Bills v. Linds ay , 9 0 9 S

. W

. 2 d 4 3 4
, 4 4 0 (T en n

. C t

. Ap p

. 1 9 9 3 ) ( q u o t i n g Ia c om e tti v . F ra ssi ne lli , 494 S.W .2d 496, 499 (Tenn. Ct. App. 1973))

.

I t is well settled in Tennessee “that the e x is t ence of a confide ntial relationship, followed by

a tra nsaction whe re i n t h e dominant party rec eives a

benef it from the other pa

rty , a presumption of undue influence arises, that may be re butted only

by clea r and c onvincing evidenc e of t he fa irness of the tr ansac tion.” Matlock v . Simpson , 902 S.W .2d 384, 386 (Tenn. 1995)

. Howeve r, as this Court discussed in In re: Estate of Maddox :

Pro o f o f th e e xis te n c e o f a c o n f id e n ti a l r e lati o n s h ip
, b y it s e lf
, w il l n o t be sufficie nt to invalidate a will. I t is not t he re lationship that concerns the courts but rathe r the a

buse of the r elationship. Proof of the e x isten ce of a c onfidential rela tionship m ust be coupled w it h evidence of one or more othe r suspicious circ umstances that g ive rise to a pr esumption of undue influenc e.

In re: Estate of Maddox , 60 S.W .3d 84, 89 (Tenn. Ct. App. 2001) ( citations omitt ed).

I t is rare to find direc t ev i dence of undue influe nce. Id . at 88. Usually , to prove undue influenc e, one “ must prove t h e ex i s t ence of suspicious circ umstances wa rra nting the conclusion that the pe rson alleg edly influence d did not act fr ee l y an d independe ntly .” Id . “The suspicious circumstanc es most fr equently relied upon to e stablish undue influence are : (1) the exis tence of a c onfidential re lationship between the testator and the benef iciary , (2) the te stator’s phy sical or menta l deterioration, and (3) the benef iciary ’s active involvement in procuring the will.” Id . at 89. Some other re cog nized suspicious circumstance s are :

(1) se cre cy

conce rning the wil l ’s exist ence ; (2) the testa tor’s adva nced a g e; (3) the lack of independe nt advice in pr eparing the will; (4) the t es t ator’s ill iterac y or blindness; (5) the unjust or unnatura l nature of the will’s terms; (6) the te stator being in an emotionally

d i s t ra u ght state; (7) discr epanc ies betwe en the will and the testator’s e x presse d intentions; and (8) fraud or duress dire cted towa rd the testator

.

Mi tc he ll v . S

mi th , 779 S.W .2d 384, 388 (Ten n

. C t

. Ap p

. 1 989). “The courts have ref raine d from
presc ribing the type or numbe r of suspicious circumstanc es that will warr ant invalidating a will on the g rounds of undue influence .” Id

.-12- I n this case, the jury

found that a c onfidential re lationship ex isted betwee n Def endant

a ndthe De c e a se d o n o r be fo re the da te the 19 93 wi ll w a s e xec ute d. Th e jury he ardte sti mon y

on thi s issue including, a mong othe r thing s, the fac t that Defe ndant lived next door to the Dece ased and farmed the De cea sed’s land. T h eyalso hea rd that the De cea sed sig ned a doc ument that g ave Def endant powe r of a ttorney

. Further, the evidence showed that in 1992, prior to the e x ecution of the 1993 will, the Dec ease d added D efe ndant’s name to her c hecking acc ount giving Def endant joint rig hts of survivorship. E v i d en ce showed that De fenda nt did write che cks on the De cea sed’s chec king a ccount. The evidenc e also showed that in 1992 or 1993, Def endant sold the De cea sed’s
tr a c tor , g ot $ 5, 00 0 f

or it a nddid no t pu t the mon e y in the De c e a se d’ s a c c ou nt. Ta kin g the str on g e st le g iti ma te vie w o f a ll the e vid e nc e in f a vo r o f the ve rd ict , a ssu min g the truth of a ll tha t te nd s to

su pp ort it , a llo wi ng a ll r e a so na ble inf e re nc e s to su sta in the ve rd ic t, a nddis c ard ing a ll e vid e nc e to the contra ry , as we must, we find there was mate rial evide nce to support t he jury ’s ver dict. We, there fore , must and do aff irm the jury

verdic t that a confidential relationship exi sted betwe en Def endant a nd the Dec ease d on or bef ore the date the 1993 w ill was executed.

Def endant a lso arg ues there was n o m at er i al evidence to support the jury ’s ver dict of undue influence. H oweve r, the jury hear d testimonythat Def endant a ccompa nied the De cea sed and Ms. Copeland to Attorney Holbrook ’s office the da y the will was sig ned and tha t Defe ndant drove the Dec ease d to that meeting . They also hea rd testimony

that Def endant was g iven a copy

of the will to review prior to execution. The evidence further showed that the Decea sed told sever al of her children she was planning for the farm to be divi ded among all her childre n. The jury hear d
te sti mon y that sev e ra l of

the De c e a se d’ s c hil dr e n w e re un a wa re of the e xiste nc e of

the 19 93 wi ll prior to the De cea sed’s de ath. The jury also hea rd that in the ea

rly 1990' s, Defe ndant started ta king the Decea sed t o have her tax es pre pare d by H& R Block, whic h is where he had his pre pare d. The evidenc e also showe d that Def endant started g etting the Dec ease d’s mail beca use the De cea sed wa s unable to wa l k down to the mailbox any more. F inally , sever al witnesses testified the y noticed a decline in the D ece ased’ s mental status in the early 1990' s. The jury was entitl ed to find the evidenc e pr e se nte d in fa vo r o f P la int if fs mor e c re dib le tha n the e vid e nc e pr e se nte d by De fe nd a nt, a ndc le arl y they did so. Taking the strong est leg itimate view of a ll the evidence in favor of the ver dict, assuming the truth of all that tends to support it, allowing a ll reasona ble infer ence s to sustain the verdict, and discarding all evidenc e to the contr ary , as we must, we find there was mate rial evide nce to support the jury ’s ver dict. We, theref ore, must and do a ffirm the jury verdic t of undue influenc e.

Finally , we c onsider whe t h er the Trial Court er red in de ny ing the objection to the entry of judg ment. Along with this i ssue must be consider ed the Plaintiffs’ issue as t o whether the Trial Court e rre d in striking the jury ’s answe r to the third interrog atory

. The Trial Cour t g rante d Def endant’ s motion to strike t he jury ’s answer to the t hird question on the g round that the que stion did not address whether Def endant was the party

who unduly

influence d the Dec ease d. J udg ment then was e ntere d based upon the jury ’s answe rs to questions one and two and the e vidence prese nted to the jury

and the Trial Court. The jury was not aske d to give a g ener al ver dict, and did not do so. De fe nd a nt a

rg ue s th a t th e le g a l c on c lus ion ma de by the Tr ia l Co urt in de c lari ng that th e 19 93 wi ll was not the De cea sed’s last will and testame nt was base d solely upon a finding of conf

idential-13-

r e l a t i o n s h i p w i t h o u t a f

i n d i n g o f u n d u e i n f

l u e n c e a n d “ c a n n o t s t a n d
, a s a m a t t e r o f l a w

. ” We disag ree . We believe it is clea r from the Trial Court’s judgme nt that it took t he jury ’s ver dict on the fi rs t tw o in te rr og a torie s a ndth en con si dere d a ll the e vid e nc e pr e se nte d a t tr ia l in arrivi ng a t it s jud g me nt. Th e re wa s a

c on fi de nti al rel ati on sh ip as fo un d b y the jury a ndthat de te rm inatio n is support ed b y materia l evidence . There was a dditional evidence of one or more suspicious circ umstances that g ave rise to a pre sumption of undue influence by the Defenda nt. I t is clear f rom the Tr ia l Co urt’ s judg me nt tha t it fo un d tha t the De fe nd a nt fa ile d to mee t his b ur de n o f r e bu tti ng thi s presumption of undue influe nce b y cl ea r and c onvincing evidenc e. We find no er ror by the Trial Court on this i ssue.

Additionally , the Trial Court er red in s t ri king the jury ’s answe r to question three

. Undue influe nce doe s not need to be e x erc ised direc tly by the donee

. Es tat e of Al lin e El iza be th Glasgow v. W

hittum , 106 S.W .3d 25, 31 (Tenn. Ct. App. 2002) . As this Court dis cussed in Es tat e of Glasgow :

It i s i m m a t e r i a l w h e t h e r u n d u e i n f

l u e n c e i s e x e r c i s e d d i r e c t l y o r i n d i r e c t l y. I n deter mining whe ther undue influence is p re s en t, a ce ntral foc us is on the means used and the eff

ect upon the donor. The unde rly ing the ory of the doc trine is that the do no r i s in du c e d b y

va ri ou s me a ns to e xec ute a n in str ume nt tha t, i n re a lit y , is the wi ll of anothe r substituted for that of the donor. We specific ally reje ct t he conte ntion that a bene ficiary

must be the one who e x erts the undue influence

.

Id

. (q u o t i n g Montoya v . Torres , 823 P.2d 905, 909-10 (N.M. 1991) ( citations omitt ed))

.

Thus, the Trial Court erred when it struck the jury ’s answe r to question three . The jury ’s answe r to que stion thre e should ha ve been considere d. “[I ]f the Trial J udg e re ache d the rig ht result for the wrong rea son, there is no re v er s i ble er ror.” Shutt v. Blount , 249 S.W .2d 904, 907 (Tenn. 1952) . Given the Tr ial Court’s own implicit finding conc erning u n d u e i nfluenc e by the Def endant and the j ury ’s findi ng s of confidential rela tionship and undue influence , both supported by materia l evidence , we hold the Trial Court rea ched the rig ht result in deny ing the objection t o the entry of j udg ment. Given our holding s, we find the ve rdict of the jury was not base d on improper passion, prejudice , and mi sconduct of Plainti ffs’ c ounsel and wa s supported by materia l evidence

. We, the re fo re , af

fi rm the Tr ia l Court’ s judg me nt tha t the 19 93 wi ll w a s n ot the De c e a se d’ s la st w ill

a ndte sta me nt.-14- Conclusion

The judg ment of the Trial Court is affirmed, a nd this cause is re manded to the Tr ial Cou rt fo r c oll e c tio n o f the c os ts b e low . T he c os ts on app e a l are a sse sse d a g a ins t th e Ap pe lla nt, Arthur Da vid Pratt, and his surety

.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE